Schoemehl v. Treasurer of the State

LAURA DENVIR STITH, Judge,

dissenting.

I respectfully dissent. Section 287.200.1, RSMo 2000, requires two prerequisites to be met before an injured employee is entitled to permanent total disability payments: (1) the continuance of the permanent total disability and (2) the continuance of the employee’s life.1 Section 287.200.1 simply does not permit Mr. Schoemehl’s widow to continue to receive his disability benefits because his disability ceased at his death and, thus, the prerequisites to continued payments were no longer satisfied.

The principal opinion reaches a contrary result by concluding that, because section *904287.020.1 defines “employee” to include the employee’s dependents if the employee is deceased, Mr. Schoemehl’s widow is permitted to stand in his shoes upon his death. Even assuming that section 287.020.1’s broad definition of “employee” at least creates an ambiguity that this Court will resolve in favor of the injured party, Wolfgeher v. Wagner Cartage Serv., Inc., 646 S.W.2d 781, 783 (Mo. banc 1983), the principal opinion’s approach is incorrect. It improperly excises from section 287.200.1 the additional requirement that the compensation is payable for the lifetime of the employee only “during the continuance of such disability.” Leibson v. Henry, 356 Mo. 953, 204 S.W.2d 310, 315 (1947) (“the courts, in the interpretation of a statute, may not take, strike, or read anything out of a statute, or delete, subtract, or omit anything therefrom”); accord State v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004) (“Each word or phrase in a statute must be given meaning if possible.”).

The disability at issue here was an injury to Mr. Schoemehl’s knee. That injury necessarily discontinued upon his death. Even if the second prerequisite to payment under section 287.200.1 — continuance of the employee’s life — is met by reason of section 287.020.1’s inclusion of dependents in the definition of “employee,” the first prerequisite — continuance of the disability — is not satisfied. Therefore, upon Mr. Schoemehl’s death, neither he nor his dependents were entitled to continued permanent total disability payments. Accordingly, Mrs. Schoemehl is not entitled to receive compensation for permanent total disability benefits beyond that already accrued to Mr. Schoemehl at his death.

Mrs. Schoemehl argues that this result is not fair because it operates to treat dependents of permanently totally disabled individuals worse than dependents of permanently partially disabled individuals. Such a result, Mrs. Schoemehl claims, deprives her of equal protection of the laws. See U.S. Const, amend. XIV, sec. 1; Mo. Const, art. I, sec. 2.

While the amounts payable in the event of a permanent partial disability are different from those payable in the event of a permanent total disability, such a difference does not invalidate the statute. The distinction drawn does not impact a suspect class or fundamental right. Therefore, it is valid if it has a rational basis. Etling v. Westport Heating & Cooling Servs., 92 S.W.3d 771, 774 (Mo. banc 2003).

The basis for the distinction follows from the difference in the nature of total versus partial disabilities. A permanent total disability is a lasting disability that necessarily renders the employee unable to return to any sort of regular employment. Sec. 287.020.6. A permanent partial disability is “permanent in nature and partial in degree,” sec. 287.190.6(1), and is not dependent on the employee’s inability to work. Landers v. Chrysler Corp., 963 S.W.2d 275, 285 (Mo.App. E.D.1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). The benefits to be paid to a permanently partially disabled employee are of a finite, fixed amount, to be paid for a predetermined number of weeks. Sec. 287.190.1. By contrast, the payments to a permanently totally disabled employee are measured in terms of the continuance of the employee’s life and disability that prevents the employee from working. Sec. 287.200.1.

This difference in how partial versus total awards are. calculated is a rational one that reflects the differing nature of the injuries for which the awards are made. A permanent partial disability is given a fixed value because experience has shown the average number of weeks such an inju*905ry causes the worker suffering it to require compensation. By contrast, the value of a permanent total disability is left flexible because the legislative scheme presumes that the disability preventing the employee from working will continue until the injured person dies, and a person’s date of death is not predictable. By providing that the person receive benefits during the continuance of the disability for the lifetime of the employee, the legislature ensured that even if the injured person lived many years, he or she would continue to receive benefits if the disability continued.

In this case, the result is harsh because of the misfortune that Mr. Schoemehl died one month after his benefits began, but the distinction drawn by the legislature is a rational one, and the result reached by the Commission was the only one available under the statutes.

For these reasons, I would affirm the Commission’s decision.

. Section 287.200.1 provides that ”[c]ompen-sation for permanent total disability shall be paid during the continuance of such disability for the lifetime of the employee at the weekly rate of compensation in effect under this subsection on the date of the injury for which compensation is being made.”